TRAVERSE CITY, Mich. (Michigan News Source) – The Northwest Michigan Fishing Club (NWMI FC) is responsible for keeping the birds, mostly seagulls and cormorants, away from the million-and-a-half fish that are stocked in northwest Lake Michigan every year from March through May from Arcadia up through Charlevoix. The birds would love to feast on brown trout, salmon, and the other fish put into the waters for anglers and the commercial fishing industry, but the club spends a lot of time and resources making sure that doesn’t happen. With about four or five stockings a week during the spring, the club will use boats, kayaks or whatever is needed to keep the birds away, spending about two or three hours on the water each time a team is deployed for what they call avian predator control.

However, the question on the mind of board member and NWMI FC secretary Tim Hossack and the rest of the members of the group is: Does the club continue to assist in those efforts – or will they mainly be helping to subsidize the Michigan Indian Tribes’ commercial fishing industry with their newly approved expansion of the use of gill nets?

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At issue is a recent federally approved Great Lakes Consent Decree between the State of Michigan, the United States government, and five of Michigan’s tribal governments – the Bay Mills Indian Community, the Grand Traverse Band of Ottawa and Chippewa Indians, the Little Traverse Bay Bands of Odawa Indians, the Little River Band of Ottawa Indians and the Sault Ste. Marie Tribe of Chippewa Indians.

On August 24, 2023, U.S. District Judge Paul Maloney issued his opinion in United States (and the Tribes) v. State of Michigan, approving the 2023 Great Lakes Decree which applies to the aforementioned groups. According to the State of Michigan, “The agreement will define for the next 24 years how the state, the federal government and the Tribes will cooperatively allocate and manage the resources in the 1836 Treaty-ceded waters of the Great Lakes.”

In the opinion, Judge Maloney concluded that the new Consent Decree “respects the Treaty rights, protects the fishery and complies with the law of the case.”

But others disagree that the decree will protect the fishery, which is valued at more than $7 billion, and, in fact, they think just the opposite will happen. Because of that, they are sounding the alarm about the decree which has many in the commercial fishing industry and those concerned with conservation, saying that it will change the fishing industry once the Tribes are allowed to expand their use of gill nets. Gill nets are a wall of webbing held vertically in the water by weights and floats and designed to capture fish by means of entanglement.

The Coalition to Protect Michigan Resources (CPMR), an organization working to protect sport fishing on the Great Lakes, its tributaries, inland lakes and waterways, explains that the Consent Decree vastly increases areas of the great lakes where gillnetting is allowed for the Tribes in what they call a “dramatic about-face of past DNR policy with consequences that jeopardize declining whitefish, recovering lake trout and the threatened lake sturgeon, to name a few.” They say that the resource implications of gillnet expansion are potentially severe and threaten the future of all fisheries: recreational, commercial, and subsistence – and add that the expansion of the gillnetting would place millions more feet of gill net effort in the Great Lakes annually and allow an overharvesting of whitefish, lake trout, salmon, walleye and perch by the Tribes.

Before the newest Consent Decree was approved, everyone had been operating under the 2000 Great Lakes Consent Decree. Hossack said, “You kind of have to suspend common sense when you talk about gill nets because for 40 years now, the DNR has outlawed gill nets. They paid the Tribes $14 million in 2000 to convert out of gill nets into trap nets – which allows for bycatch to be released, still alive, where gill nets don’t do that. So, this complete reversal is just mind boggling as to how the ‘representatives of the fishermen of the state’ is representing gill nets.” Bycatch is a term used by the fishing industry to describe any non-target fish or animals that are inadvertently caught while fishing, and that includes loons who feed on the bottom of lakes.

Hossack went on to say, “What the DNR wants to have everybody believe is that gill nets are not indiscriminate killers. They want you to believe that the Tribes will target their fish, whitefish and lake trout, and they won’t catch any other fish. There again, you have to apply common sense. It’s a wall of netting, 4-6 inches, or the new and improved small mesh gill nets 2-3 inches. So not only are we getting mature fish, now we’re getting immature fish and other species like perch, small mouth (bass), walleye, cisco, you name it…whatever swims is going to get in the net.”

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And what about the fish in the Great Lakes that are threatened or endangered? According to the Great Lakes Fishery Commission’s webpage, “During the previous two centuries, the fish fauna of the Great Lakes has been altered dramatically due to increasing human populations, the global movement of goods (which has contributed to a rise in the introduction and spread of invasive species), and over-fishing. As a result of these pressures, 18 native species, including several species of ciscoes that historically comprised the bulk of the fish biomass in most of the Great Lakes, have been extirpated from at least one Great Lake. Today, 61 fish species in the Great Lakes are considered to be threatened or endangered.”

Michigan News Source reached out to David Caroffino, Tribal Coordination Unit Manager for the Fisheries Division of the Michigan DNR, to ask why changes were made to allow the gill nets in the new decree and he responded, “Gill nets are not new to the Tribal fishery, they were fished throughout the 1836 Treaty waters after the Fox Decision in 1979. In the 1985 Decree, there were specific regulations about when and where they could be used, as was the case in the 2000 Consent Decree and now in the 2023 Decree. The conditions that made a change to trap nets a viable part of the 2000 Consent Decree (primarily abundant Lake Whitefish in lakes Michigan and Huron) are no longer present. The Trap Net Conversion Program within the 2000 Consent Decree was only established for the period of that Decree, and there was no legal basis for it being mandatory to continue. Nothing in the 2000 Consent Decree, related to open areas, times, gears etc., was guaranteed to continue in the next decree. While many aspects of the 2000 Consent Decree were carried forward, some regulatory differences related to gear usage are present. Many of these are related to changes in the fishery resulting from an evolving Great Lakes ecosystem over the past two decades.”

When asked how gill nets will result in the conservation of the fish and not the destruction of the fishery with Tribes catching more bycatch, Caroffino said, “The original controversy that led to the court cases about the Tribal right to fish was about gill net usage. The courts have made it clear that the State cannot dictate to the Tribes the types of gear they can use to harvest fish. The State and the Tribes come together to share data and monitor populations of key species, setting safe harvest limits to ensure sustainability of the fish populations. It is not the State’s decision what type of gear the Tribes use to harvest their allocation of a given fish species (which is a portion of the safe harvest limit). The Tribes have voluntarily agreed to some restrictions for their fishers regarding where, when, and how they will use their preferred gear type. Those restrictions are based on the desires of the State. While some may remember a period of unregulated gill net usage from four decades ago, the modern fishery is regulated and executed in a way that bycatch is minimal and avoided by Tribal fishers. Many species of fish commonly considered “sportfish” cannot be sold commercially (see Section VIII.J. of the Decree). All landed catch will be reported by Tribal commercial fishers, even those that cannot be sold, and fishers have no desire to set and lift nets in areas that catch fish that cannot be sold.  Nearly all recreational and commercial fishers share the value that the resource is important, and discarding dead fish should be avoided, whenever possible. Additionally, data from gill net surveys conducted by State, Federal, and Tribal natural resources agencies have demonstrated that gill nets can be fished in ways that minimize or even eliminate the catch of non-target (or non-commercial) species.”

However, according to Hossack, much of the fish that the Tribes catch gets sold to the pet food industry and fertilizer companies which weren’t big markets back in 2000. He said that with the pet food industry, it doesn’t matter if they receive the whole fish or guts – they will take it all.

In addition to conservation groups, charter fishing companies and others who are not happy with the new decree, one of the Tribes is not happy either. The judges’ ruling in August overruled the objections of the Sault Ste. Marie Tribe of Chippewa Indians who didn’t agree that the Consent Decree applied to them. When contacted by Michigan News Source about the latest ruling, Sault Tribe Chairman Austin Lowes said, “Fishing is a treaty-protected right that is integral to who we are as Anishinaabe people. Fishing has sustained the health of Anishinaabe peoples since time immemorial through physical nourishment and the economic opportunities associated with fishing. The Sault Tribe is a leader in sustainable fisheries management and has more commercial fishermen than any other Tribe in Michigan.”

Lowes went on to say,” The Sault Tribe is deeply disappointed in the court’s order which restricts our rights as a sovereign nation, affects the livelihood of our citizens, and limits the ability of our people to feed themselves. We remain confident in our ability to maintain a healthy fishery regardless of a decree, and our board is still considering our next steps in this process.”

Also not happy with the decree ruling is CPMR. The organization is comprised of Michigan United Conservation Clubs, the Michigan Charter Boat Association, the Michigan Steelhead and Salmon Fishermen’s Association and Hammond Bay Area Anglers, accompanied by an assortment of angling and conservation supporting members. Since the coalition’s inception, it has worked to ensure that recreation anglers’ voices are represented during the Great Lakes Consent Decree negotiations. For a history of those efforts, click here.

CPMR has served as amici, or friend to the court, through every iteration of the court litigation and negotiation of the Consent Decree since the late 1970’s. The District Court denied the Coalition’s intervention in 2022 to be a full party in the lawsuit but provided it with a quasi-party status.

In the decree ruling, Judge Maloney rejected the CPMR’s claim that biological harm is likely to happen to the fishery resource and that there will not be property measures in place to litigate that harm. CPMR was not given an opportunity to present expert testimony during the lawsuit – and the DNR and the court also ignored the testimony from the Lake Michigan Citizens Fishery Advisory Committee, the Lake Huron Citizens Fishery Advisory Committee, The Michigan Charter Boat Association and the Mayor of Rogers City, thus ignoring the cumulative experience of nearly 100 years of treaty water fishing in Lake Michigan, Lake Huron and Lake Superior.

CPMR President Tony Radjenovich, said in a press release about the judge’s decision, “Expanded gillnetting now allowed in bays and other areas of the lakes that haven’t had them for more than 40 years will cause social and biological consequences to the fishery resource. Our groups were trying to be proactive in protecting the Great Lakes fisheries by objecting to these measures being implemented through this decree; however, now we will have to remain even more vigilant to ensure our worst-case scenarios do not come to pass.”

Amy Trotter, chief executive officer of Michigan United Conservation Clubs (MUCC) and CPMR treasurer, said accountability and oversight will be key moving forward. She said in a statement, “We have to focus on ensuring that the words on paper and the intent are followed through with and that all negative consequences are mitigated under the decree,” Trotter continued. “Regardless of the words on paper, the Michigan DNR, United States Fish and Wildlife Service, the five Tribes and stakeholders must strive to ensure no commercial activity or management decisions cause undue harm to the resource.”

CPMR is allowed to appeal the judge’s ruling and has until October 23rd to do so. Trotter said, “We are currently discussing that with our legal team. Each of the member organizations of CPMR also have to get approval from their own board of directors as well, and those meetings are still forthcoming.”

Hossack believes that the only way to know the extent of the damage that the new decree will have on the commercial fishing industry and the fishery resource is to wait and see. He says that he expects the implementation date for the decree, which has not been announced, to happen possibly in January of 2024. He says, “Let’s just say gill nets go in the water in January. Well, that’s spawning. The springtime perch season is the spawning season and those small mesh gill nets will be all up and down the coast, all around Northport, all up and down Charlevoix, the Petoskey area, Harbor Springs… prime perch spawning habitat and we’re going to take all the spawners and put them in a big gill net and sell them to the pet food industry.”

With smaller mesh openings in the gill nets that the Tribes will be using, the nets will not just target the fish that are meant to be caught. Hossack says they could possibly wipe out the entire fishery – the bass, perch, walleye and more. He also questions the management of the gill nets, or lack of, by the DNR. He says they will not be able to manage all of the gill nets, with no real monitoring done on-site.

Hossack said the DNR doesn’t have weigh stations, observers on boats, observers at any of the fish packing places or processing places. He says, instead, the DNR is counting on management of the fishery to be done by a new electronic reporting system where the Tribes are supposed to self-report their information. Supposedly, there will be a red flag when a Tribe hits their total allowable catch (TAC) but Hossack says that language concerning TAC is very vague and he couldn’t actually come up with a number of fish or the weight of fish the Tribes or the sportsmen are allowed because the language is poorly written. He concluded that one would have to suspend belief and common sense once again to think that the management can be done on an “honor system by Tribes that have already had a track record of less-than honorable reporting.”

When asked about this issue, Caroffino told Michigan News Source, “Self-reporting is common in fisheries. Recreational anglers self-report their catch to State creel clerks, allowing the State to estimate recreational harvest (which is a critical piece of data for fisheries management). Charter captains self-report their catch from each trip they take. State-licensed commercial fishers also self-report their catch, and Tribal fishers have the same regulations. State, Tribal, and Federal staff review submitted reports for accuracy.”

Caroffino went on to say, “In the 2023 Decree, improvements to data reporting and sharing are prominent. Electronic reporting will occur twice monthly (rather than monthly), and data will be automatically shared between the State and the Tribes, ensuring that progress towards a harvest limit is transparent to staff from all seven governments (5 Tribes, State, and U.S.). Both the State and the Tribes have committed within the Decree to manage to their harvest limit in each area. The Decree is backed the Federal court, so should a party willfully choose to ignore the harvest limits, that party would be in violation of the Federal court order and the issue would be accordingly elevated.”

Violations and penalties are another concern. What if the Tribes don’t adhere to the decree? What if they catch more fish than they are allowed or place gill nets where they aren’t allowed? There seems to be no real penalty for doing so, no real incentive to follow the rules. Hossack says there is zero enforcement on net placement or stale nets (nets left out).

And if someone does get “caught” (no pun intended), it’s a small $100 fine in what Hossack calls “white man commercial penalties” that were written back around 1950 when $100 was a lot of money. The MUCC (Michigan United Conservation Clubs) has fought for steeper fines, but they never came about.

Worried about the possible end of the state’s fishery, Hossack pointed to the year 1979 when the Sault Tribe came down and cleaned out both bays in 30 days. He hopes nothing like that will happen again. When talking about east and west bays in the Grand Traverse Region, he says that 4,500 linear feet of gill nets will be allowed in the bays, adding, “That will stretch from the west side of west bay to the east side of west bay, all the way to Power Island. It’s the main avenue approach for many boaters, sailboats, big cruise liners…that could be sealed off with gill nets.” He said the Tribes probably won’t do it because they have GPS and sensors and enough equipment to know where the migratory routes are to find the fish. However, Hossack expects the Tribes to seal off the areas that the fish use the most.

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Hossack says that overfishing with gill nets is the number one concern of the NWMI FC; however, his fishing group is also concerned about safety. He said, “You have commercial nets that hopefully will be marked with a visible marker at night. Because that’s when fishing is done. You go out at 4:00 in the morning for a 5:00 sunrise. The fish bite and charters go out and recreational fishermen go out early in the morning and late at night. So hopefully the commercial guys will have markers on, but the real problem is the subsistence fisherman are allowed 300 feet of gill nets. They’re supposed to stay 100 feet off the tributary mouth” but he says no one is out on the water with a tape measure. Hossack says that in the case of a reported violation, the DNR would most likely point fingers and say it’s a tribal sheriff issue. The Tribe will say it’s in public waters and you have to call the county sheriff. The county sheriff will say it’s a DNR fisheries issue. Hossack says, “So there’s no one taking responsibility for say, a net that’s 50 yards off the tributary instead of 100.”

Hossack also discussed the safety of the boats getting caught up in the nets. He said, “Downrigger cables will scoop into the net. You will string that net out until you figure out what’s going on. Let’s say 100 yards. Now the net is pulling you backwards so you’re getting water over the transom of the boat, and this is how a lot of vessels have sunk.”

With overfishing and the safety issues apparent to many, Hossack says, “You would think that the DNR, the ‘protectors’ of our resource would be all over this.” So he asks, “Why the change?” He said everyone was getting along and getting their TAC and added, “Nothing really needed to be done. Except the DNR gave the Tribes the open door and gave them everything they wanted. Not one concession was awarded to the fishermen of the state.” That includes having no lights required on the gill nets, which would help the safety aspect of fishing for all involved.

Hossack is also worried that charter fishing companies are going to want to use gill nets too so they can compete with the Tribes. He calls it a race to clean out the fishery – “every man for themselves” in the wild west. Hossack said about the decree and its repercussions, “The fishermen of the state have put a lot of money and time into rehabilitating lake trout and white fish and they’re coming back and the reefs are lively with natural reproduction. And now that all comes to an end.” Under the new decree, the recovering lake trout are no longer being considered as bycatch – they are targeted.

So, what was involved in getting the Consent Decree over the finish line? Michigan News Source had previously reported that before the decree negotiations were started, Caroffino said that the State had been looking at public input from a letter that was sent to 141 different sporting group representatives and individual anglers in 2014 requesting feedback on things that worked well with the 2000 Consent Decree and areas they would like to see changed. He said, “That feedback was used along with information from Fisheries and Law Enforcement staff.” He added that in 2017, the DNR notified everyone that once negotiations began, shared information would be limited and then in 2019 when negotiations officially began, public comment was limited to those who were part of the amicus curiae groups (not party to the legal case but it permitted to offer information and expertise to the court) that had signed confidentiality agreements.”

When asked who in the DNR was responsible for the negotiations and decision about the Consent Decree, Caroffino said, “Membership within the State’s negotiating team varied a bit as this process spanned four (+) years, but we had between 9 and 11 people actively involved in negotiations, including the Director, fisheries chief and staff, law enforcement staff, attorneys, and a representative from the Governor’s office.”

When asked why the new decree lasts for such a long time, Caroffino said, “The 1985 decree lasted 15 years. The 2000 Consent Decree lasted 20 years. The 2007 Inland Consent Decree is in effect in perpetuity, it has no expiration or end date. The Parties believed that given the Great Lakes change over time, a decree in perpetuity was not prudent, but the duration needed to be cognizant of history and appropriate for the investment made to craft the regulations. The process to negotiate these types of agreements is extremely challenging and takes a substantial amount of time, effort, and financial resources. There are cycles within the 2023 Decree related to harvest limits (3-year cycle) and reviews of mortality rates (6-year cycle) that work well with a 24-year duration, which is the duration with which the Parties felt most comfortable.”

The DNR said in a press release on Thursday that overall in the state, more than 269 tons of fish, eight different species, plus one hybrid, added up to more than 9 million fish that were stocked in Michigan lakes during this year’s spring and summer. They said the stocking included 2,233 hours, more than 89,000 miles, DNR fisheries crews in 17 specialized trucks and 375 trips to stock fish at 705 different sites.

It’s the fate of those fish, how many will be caught and how, that is concerning to many in the state. However, Hossack said that Michigan is not the only state that should be concerned with the 2023 Great Lakes Consent Decree. He said, “Ontario, Ohio, Indiana, Illinois, Wisconsin, Minnesota…everybody that borders a Great Lake is going to be sorely disappointed after this summer. There’s going to be a baron wasteland like there was back in the ’80’s.”